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sive upon all other persons. This construction was held necessarily to result from the nature of the power given by the Constitution, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised on sudden emergencies, and under circumstances which may vitally affect the existence of the Union, and a prompt and unhesitating obedience is indispensable to the attainment of the object. The service is a military service, and the command of a military nature; and in such cases, every delay and obstacle to an efficient and immediate compliance, necessarily tends to put in jeopardy the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts on which the commander-inchief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If the power of regulating the militia, and of commanding its services in times of insurrection and invasion, be, as has been alleged, natural incidents to the duty of superintending the common defence, and watching over the internal peace of the Union, then must this power be so construed, with respect to its exercise, as not to defeat the important ends in view. If the governor of a state, or other superior officer, has a right to contest the orders of the President, upon his own doubts as to the existence of the exigency, it must be equally the right of every inferior officer, and of every private sentinel; and every act of any person in furtherance of such orders would render him liable in a civil suit, in which his defence must finally rest upon his ability to establish, by competent proof, the facts upon which the exigency was said to have arisen. Such a course would obviously be subver
sive of all discipline, and expose the best-intentioned officers to the chances of a ruinous litigation ; and in many instances, the evidence on which the President may have decided might not constitute technical proof, or its disclosure might reveal important secrets of state, which the public interests, and even safety, might require to remain concealed.
This power, therefore,“ to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasions,” confided to Congress by the Constitution, is carried into effect by the law which provides that, when any such exigency exists, the militia of the states may be “called forth” by the chief magistrate of the Union, who, by the Constitution, is commander-in-chief of the militia when in the actual service of the United States, whose duty it is “ to take care that the laws be faithfully executed,” and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily to judge, in the first instance, and is bound to act according to his belief of the facts. If he decide to call forth the militia, and his requisitions, which are orders, for this purpose, are in conformity with the provisions of the law, it would seem to follow, as a necessary consequence, that every subordinate officer is bound to obey them. Whenever the law gives to the President a discretionary power, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts, and it is not a valid objection that such power may be abused; for there is no power that is not susceptible of abuse. The remedy for this, and all other official misconduct, is to be found in the Constitution itself. In a free government the danger must be re
mote, since, in addition to the high qualifications which the chief magistrate must be presumed to possess, the frequency of elections, and the watchfulness of the national representatives, carry with them all the checks that can be useful to guard against usurpation or tyranny.
It has, however, been objected, that even admitting the judgment of the President to be conclusive as to the existence of the exigency, still it is necessary that it should appear that the particular exigency in fact existed; and the same principles were alleged to be applicable to the delegation and exercise of this power intrusted to the President for great political purposes, as are applied to the humblest agent of the government, acting under the most narrow and special authority. But when the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of the law. Every public officer, indeed, is presumed to act in obedience to his duty, until the contrary be shown; and à fortiori, that presumption ought to be favourably applied to the chief magistrate. Nor can the non-existence of the exigency be averred and shown by the delinquent party; for if it could be averred, it would be traversable, and, of course, might be passed upon by a jury; and thus the legality of the order would depend, not on the judgment of the Presi. dent, but upon the finding of those facts upon the proof submitted to the jury. It must therefore be sufficient if the President determine the exigency to exist, and all other persons must be bound by his decision.
IV. The power of raising money by taxation and loans being the main sinew of that which is to be exerted in the national defence, is therefore properly arranged in the same class, especially as this object is specified in the Constitution as one of the purposes
of vesting it in Congress. The support of the national forces, the expense of raising troops, of building and equipping fleets, and all the other expenditures in any wise connected with military and naval plans and operations, are not, however, the only objects to which the jurisdiction of Congress, with respect to revenue, extends. The terms by which the power is conferred embrace a provision for the support of the civil establishments of the United States, the
payment of the national debt, and, in general, for all those objects for which “ the general welfare” requires the disbursement of money from the national treasury. The necessity of vesting this power in the Federal Government seems to be too obvious to require elucidation. Money is, indeed, the vital principle of the body politic. It is that which sustains its life and motion, and enables it to perform its most essential functions. No government, therefore, can be supported without possessing the means within itself, independently of the concurrence of others, of procuring a regular and adequate supply of revenue, so far as the resources at its command will permit. There must, of necessity, then, be interwoven in the texture of every government a power of taxation in some shape or other. In the government of the United States, it is coextensive with the purposes of the Constitution. Congress is accordingly invested with power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare ;” and it has also a distinct power" to borrow money on the credit of the United States."
It was originally urged as an objection to the Constitution, and it is still occasionally contended, that the latter branch of the former of these clauses amounts, in terms, to a commission to exercise every
may be alleged to be necessary for the general welfare.” But this construction was promptly refuted by the authors of " The Federalists :” “ Had no other enumeration or definition of the powers of Congress," say they, “ been found in the Constitution, there might have been some colour for this interpretation, though it would then have been difficult to have found a reason for so awkward a form of describing an authority to legislate in all possible cases.” It is evident that the expressions in question must be taken in connexion with the preceding branch of the clause, and were intended merely as a specification of the objects for which taxes are to be laid, and not to convey a distinct and independent power to provide for “ the general welfare. "*
The power of taxation is, moreover, limited, by requiring that." capitation and other direct taxes shall be apportioned among the several states according to their respective numbers, as ascertained by the cen. sus, and determined by the rule for the apportionment of representatives in Congress.” It is qualified, also, by a provision that “all duties, imposts, and excises shall be equal throughout the United States ;" and it is farther restricted by a prohibition upon Congress to “lay any tax or duties on articles exported from the United States.” The Constitution does not de. fine or select subjects for exclusive taxation by the Federal Government; although, in some instances, an interference must have been foreseen from the exercise of a concurrent power with the states. But it was thought better that a particular state should sustain this inconvenience, than that the national necessities should fail of supply; and it was manifestly intended that Congress should possess full power,
* Federalist, No. 41.